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State v Don (No. 2) [2021] PGNC 120; N8889 (18 June 2021)

N8889

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 137 OF 2016

THE STATE

V

BOBBY ANDREW DON
(No 2)

Bomana: Berrigan J
2021: 5^th and 18^th June

CRIMINAL LAW – SENTENCE – AGGRAVATED ROBBERY OF A HOSPITAL – Starting point of 12 to 15 years of imprisonment - Conviction following trial – Substantial property to the total value of K118,020.70 in cheques and cash stolen, including K47,850 in cash, plus a phone and firearm – Offender played the role of watchman – Sentence of 12 years imposed, partially suspended having regard to the offender’s disability, condemnation of police brutality, and substantial evidence to establish progress towards rehabilitation whilst in custody.

The offender with three other men drove to the rear entrance of the Paradise Private Hospital on the morning of Friday 1 May 2015. Shortly before 8:30 am, two of the offender’s accomplices, armed with factory made firearms, held up the security guards. The two accomplices went into the car park and to the rear door of the hospital whilst the offender kept watch over the security guards at the gate. At about 8:30 am the victim walked out from the hospital using the back door, carrying a bag containing a total in cheques and cash of K118,200.76, of which K47,850 was in cash. His wife followed behind him. As he opened the door the offender’s accomplices pointed their guns at his head and stole the money bag, taking the victim’s phone and pistol from his pockets as they did so, before escaping with the offender in the waiting vehicle. They drove to a house in Bisini, where the monies were distributed. The offender received K2500 for his part.

Held

(1) The penalty of death under s 386(2) of the Criminal Code is a maximum and not a mandatory sentence.

(2) Aggravated robbery is a scourge on the nation. Its fear is all pervading. Through its 2013 amendment Parliament has indicated that aggravated robbery is a very serious offence which must be met with strong punishment: see Kaya & Kuman v The State (2020) SC 2026. The necessary corollary of the grave increase in the maximum penalty is that all sentences imposed under s 386(1)(2) of the Criminal Code, regardless of whether or not in the worst category, should, in general terms, increase.

(3) There are certain places which by their very nature are regarded as inviolable, like schools, places of worship, and hospitals. Aggravated robbery at a hospital falls in a category of its own outside those established under Gimble v The State [1988-89] PNGLR 271. Having regard to Gimble, Tau Jim Anis and Others v The State (2002) SC564 and Phillip Kassman v The State (2004) SC759, the starting point on sentence on a plea of not guilty by young first-time offenders carrying weapons and threatening violence for the robbery of a hospital is twelve to fifteen years of imprisonment.

(4) In aggravation here, the total value of property was substantial, including K47,850 in cash, plus a phone and a firearm. The fact that the offence occurred in broad daylight at a hospital in the middle of the country’s capital must have contributed further to the community’s fear of these offences generally. Such offences are prevalent and calls for strong personal and general deterrence.

(5) In mitigation this is the offender’s first offence and he has demonstrated remorse. Whilst not factors in mitigation per se, it is relevant that the offender himself was not armed, that he played a more limited role in the conduct of the robbery, and his personal benefit was limited to K2500.

(6) A head sentence of 12 years of imprisonment is imposed.

(7) Time spent in custody is deducted.

(8) Having regard to the offender’s disability, condemnation of police brutality, and the offender’s progress towards rehabilitation, a period of 4 years is suspended on the condition that the offender enter into his own recognisance to keep the peace and be of good behaviour for the balance of his sentence. A balance of 3 years, 7 months, 29 days will be served in custody.

Cases Cited:

Tau Jim Anis and Others v The State (2002) SC564
Phillip Kassman v The State (2004) SC759
John Baipu v The State (2005) SC796
Steven Loke Ume & Ors v The State (2006) SC836
Ben Wafia and Others v The State (2006) SC851
Kaya & Kuman v The State (2020) SC2026
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
Gimble v The State [1988-89] PNGLR 271
Lawrence Simbe v The State [1994] PNGLR 38
The State v Mingara (2008) N7450
State v Magani (2011) N4555
The State v Fimino (2012) N4763
The State v Dominic (2014) N5823
The State v Biromo (2018) N7413
The State v Larry and Others (2018) N7432
The State v Keith (2018) N7531
State v Aup and Joe (2019) N8015
State v Simanjon (2020) N8637

Legislation and other materials cited:

Sections 19, 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code)
Section 7 of the Criminal Code (Amendment) Act (No. 6), 2013
Section 37(3) of the Constitution

Counsel

Ms L. Jack, for the State
Mr D. Pilae, for the Offender

DECISION ON SENTENCE

18^th June, 2021

1. BERRIGAN J: The offender was convicted following trial of one count of armed robbery, in the company of others, contrary to s 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code) such that on the 1^st day of May, 2015 he stole from one Richard Sios with threats of actual violence, cash monies and cheques valued at K118,020.70, the property of Paradise Private Hospital.
   
2. The evidence at trial established that the offender with three other men drove to the rear entrance of the Paradise Private Hospital on the morning of Friday 1 May 2015. Shortly before 8:30 am, two of the offender’s accomplices, armed with factory made firearms, held up the security guards. The two accomplices went into the car park and to the rear door of the hospital whilst the offender kept watch over the security guards at the gate. At about 8:30 am the victim, Richard Sios, walked out from the hospital using the back door. At the time he was carrying a bag containing a total in cheques and cash of K118,200.76. His wife Joy Sagati followed behind him. As he opened the door the offender’s accomplices pointed their guns at his head and stole the money bag, taking Mr Sios’ phone and pistol from his pockets as they did so, before escaping with the offender in the waiting vehicle. They drove to a house in Bisini, where the monies were distributed. The offender received K2500 for his part. The offender was convicted as a principal offender having regard to s7(1)(a) and (c) of the Criminal Code.
   

Allocutus

3. On allocutus the offender said: Firstly, sorry to God. Secondly, sorry to the victim. Sorry to my lawyer for her time. Sorry to the State. Sorry to my family, my wife and my children. I have been in prison for four years. I realise my mistake, my wrong, and I am a changed person. I attend church. I am a leader for the Pentecostal Church in Bomana. I ask this court to have mercy on me. Place on good behaviour bond and suspend on sentence. I sustained an injury at the hands of the police.
   

Maximum Penalty

4. Both parties proceeded on the erroneous basis that the maximum penalty was life imprisonment.
   
5. The maximum penalty under s 386(2) was amended in 2013 (by s 7 of the Criminal Code (Amendment) Act (No. 6), 2013).
   
6. Previously, s 386(2) of the Criminal Code provided (emphasis added):

“(2) If a person charged with an offence against Subsection (1)–

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.”

7. The amendment was in the following terms (emphasis mine):

“Section 386 of the Principal Act is amended in Subsection (2) by repealing the words, "subject to Section 19, imprisonment for life" and replacing them with the following words:

"to be sentenced to death.".

8. Accordingly, s 386 of the Criminal Code now provides that:
   

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)–

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable to be sentenced to death.

9. Whilst the amendment to s 386 removed the reference to s 19 of the Criminal Code it nevertheless retained the word “liable”.
   
10. In the circumstances, I am of the view that s 386(2) remains subject to s19 (construction of provisions of Code as to punishments), which states that s19 applies unless expressly provided otherwise (emphasis added):

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and ...

11. Accordingly, the penalty of death is subject to s. 19 of the Criminal Code and is thus a maximum and not a mandatory sentence.
    
12. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. I remind myself when considering the following guidelines and comparative cases that whilst they are relevant, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
13. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst this case does not fall within that category, it remains very serious.
    

Submissions and Comparative Cases

14. Having regard to Gimble v The State [1988-89] PNGLR 271, and the Supreme Court decisions in Tau Jim Anis and Others v The State (2002) SC564 and Phillip Kassman v The State (2004) SC759 the following may be regarded as appropriate starting points on sentence on a plea of not guilty by young first time offenders carrying weapons and threatening violence for:
    
    1. robbery of a house, a starting point of ten years;
    2. robbery of a bank, a starting point of nine years;
    100. robbery of a store, hotel, club, vehicle on the road or the like, a starting point of eight years; and
    4. robbery of a person on the street, a starting point of six years.
       
15. Features of aggravation such as actual violence, a large amount stolen, or where the robber is in a position of trust towards the victim may justify a higher sentence; a plea of guilty may justify a lower sentence.
    
16. Through its 2013 amendment Parliament has clearly indicated that aggravated robbery is a very serious offence which must be met with strong punishment: see the discussion regarding amendment to s 383A of the Criminal Code in Kaya & Kuman v The State (2020) SC 2026 per Batari J at [3] to [5], and Berrigan J at [107]. The necessary corollary of the grave increase in the maximum penalty is that all sentences imposed under s 386(1)(2), regardless of whether or not in the worst category, should, in general terms, increase.
    
17. Defence counsel submitted in mitigation that this was the offender’s first conviction, that he played a minor role as watchman, was not armed and received only a small amount of money himself. No shots were fired, no persons injured and no other property stolen. Whilst the offender had escaped custody, he had already been punished for this by his detention in solitary confinement upon apprehension. Police broke his right knee cap on apprehension in 2017. He is now a reformed person. Counsel submitted that the starting point should be eight years but that having regard to the mitigating factors, a sentence of six years is appropriate. Time spent in custody, four years, should be deducted and the balance wholly suspended.
    
18. Defence counsel relied upon the following cases in support of his submissions:
    
    1. State v Aup and Joe (2019) N8015, Koeget J: The team leader of the Mini Bank South Pacific Foreign Exchange currency branch at Jackson’s International Airport was picked up early from her residence by a motor vehicle that appeared to be her normal pick-up vehicle. As the vehicle drove away from her residence, the person seated inside the vehicle behind her held her against the seat. The other person seated next to her pointed a factory-made pistol and warned her to cooperate, if she does not cooperate, they will do something to her family in the house. She was warned not to raise alarm. At the airport, the offenders and their accomplices armed with factory made pistol and guns later entered the International Terminal and forced the team leader to open the safe and remove the cash and put them in the stockfeed bag and also a blue coloured shopping bag. The offenders were both in company and used fire arms. The total amount of cash taken was K778,292.44 and none was recovered. In mitigation both offenders were first time offenders. Aup made admissions to police and pleaded guilty. During the offence he persuaded accomplices not to harm the victim. He was sentenced to 8 years, time spent in custody of 2 years, 3 months was deducted, with the balance to be served in custody. Joe was convicted following trial. He was sentenced to 10 years less the same period spent in custody;
       
    2. The State v Biromo (2018) N7413, Kaumi J: Between 3:00 and 3:30am the offender and eight accomplices went to the residences of Papindo Trading Company at China Town with a home-made gun, a factory-made pistol, an iron bar, plastic rope and a bamboo ladder. They climbed the fence, tied up the guard with a plastic rope and whilst the offender kept watch, his accomplices forced their way into the building by opening the steel door of the veranda with the iron bar and shooting and damaging the glass door of the building. They hit one occupant and he fell unconscious. They stole numerous items from the house including a utility vehicle, camera, dvd, watches, shoes, cash, wallets, cell phones, speakers and jewelery. They then broke the main gate lock and drove off with the vehicle and other stolen property. In aggravation the offence occurred at night, personal violence was used to take items of considerable value, most of which were not recovered. In mitigation the offender had no prior convictions, cooperated with police, and pleaded guilty. He was sentenced to 9 years, less 1 year, 4 months spent in custody, a further 2 years 8 months was suspended, leaving 5 years to serve in custody;
       
    100. The State v Larry and Others (2018) N7432, Numapo AJ: Three young offenders pleaded guilty to robbing an Able Computing shop at Laurabada Avenue, Lae, whilst armed with bush knives, kitchen knives and homemade shotguns, after pretending to be customers. They held up the security guards at gunpoint at the entrance and assaulted them, broke the display glass cabinet and stole electronic equipment and phones to the value of K95,155.74, most of which was recovered by police. They wrote to the victims expressing their shame and remorse. They were sentenced to 5 years in prison, less time spent in custody, two of the four years remaining was suspended on strict conditions;
         
    4. The State v Mingara (2008) N7450, Kaumi AJ: Between 8:30am and 9:30am the young offender pleaded guilty to robbing a business, Fabrelle (PNG) Limtied. They used fake ID cards to enter the business and once there and armed with guns and a staple gun stole monies, a laptop and two mobile phones, to the value of K92, 000, before escaping on a prearranged boat. He was sentenced to 7 years, 1 year 6 months spent in custody was deducted, a further 1 year 6 months was suspended, leaving a balance of 4 years to be served;
       
    5. The State v Keith (2018) N7531, Namapo AJ: the offender was found guilty after trial of robbing with a homemade shotgun and threats of violence on members of the public near Fone Haus Shop in Lae, whilst his accomplices robbed the manager of the store. In total goods to the value of K7689 was stolen, before the offender escaped in a getaway vehicle. He was sentenced to 5 years, 2 years, 2months pre-trial custody was deducted, with the balance wholly suspended;
       
    6. The State v Dominic (2014) N5823, Geita J: the offender pleaded guilty to robbing a shop at around 8 pm at night, whilst in the company of five others, whilst armed with two home made weapons and a bolt cutter. The store manager was assaulted and cash and store goods valued at more than K45, 000.00 was stolen before they escaped via the sea. Monies were recovered. A head sentence of 7 years for purposes of consistency and parity was imposed, from which 1 year was deducted for police brutality, together with a further 4 years already spent in custody. The balance of 2 years was suspended on strict conditions, including community service.
       
19. The State submitted that the starting point was 7 years but submitted that the appropriate range was 8 to 10 years having regard to the aggravating factors and the prevalence of such offences, including the fact there was a trial, he played a significant role, had escaped from custody and caused inconvenience as a result.
    
20. It relied on The State v Fimino (2012) N4763, Ipang AJ: the offender pleaded guilty that between 9.00am and 10.00am the prisoner and four others held up the Station Manager and other employees at the Evangelical Brotherhood Church (EBC) Training Centre at Kassam whilst armed with pistols and a bush knife, tied up the Station Manager and the employees and escaped with a sum of K13, 750.00. He personally received K1000. He was sentenced to 7 years, less time spent in custody, with the balance of 5 years, 8 months, 1 week and 1 day wholly suspended on conditions, including community service at the station.
    

Consideration

21. Aggravated robbery is a very serious offence. As Batari J explained in State v Magani (2011) N 4555:

“It is a very serious crime as it attacks the very essence of constitutional guarantees for every man, woman and children in this country to have the freedom to live, move around and go about his or her lawful business anywhere and at any time of the day, without fear or apprehension of unwarranted attacks. People should feel safe in their homes, at their work places, on the streets and roads, without fear as many do, of prowling armed robbers threatening and stealing from them.”

22. In short aggravated robbery is a scourge on the nation. Its fear is all pervading. It has led to the proliferation of security firms to guard businesses and the homes of those individuals who can afford them.
    
23. For those directly affected by aggravated robbery, the victims are often left with psychological, and sometimes physical scars, that live on long after the incident itself.
    
24. This case was particularly serious in my view. I do not agree that the appropriate starting point is 8 years. The robbery occurred not at a store, nor a bank, nor a house but at a hospital. That is very significant. Regardless of whether or not it was a private hospital and run for profit, it was a hospital, a place where doctors and nurses care for the sick and vulnerable, from the newly born to the dying, and those needing emergency care.
    
25. There are certain places which are, by their very nature, generally regarded as inviolable, like schools, places of worship, and hospitals. Even in times of war, such places are universally recognised as places of refuge. There is something shocking about a robbery at a hospital. In my view it falls in a category of its own.
    
26. Having regard to Gimble, Tau Jim Anis and Kassman (supra), it is my view that the starting point on sentence on a plea of not guilty by young first-time offenders carrying weapons and threatening violence for a robbery at a hospital is between twelve to fifteen years of imprisonment. Such offences warrant a sentence that sends a strong deterrent message.
    
27. Having identified the starting point it is necessary to consider the aggravating and mitigating factors.
    
28. The fact that dangerous weapons were used and the offence was committed in company of others is inherent in the offence of aggravated robbery and is already reflected in the starting point I have identified.
    
29. In aggravation the amount of money stolen was substantial, albeit that of the K118,020.70, only K47,850 was in cash. The State did not make clear what type of cheques were stolen (eg cash) or what happened to them. A phone and a firearm were also taken. Whilst it is not suggested that the offender obtained the firearm, and there was no evidence to show whether or not it was ever recovered, the offender participated in an offence which could have resulted in a firearm being loose in the community.
    
30. Probation Services was unable to speak to the victim’s wife, who was present at the time of the offence. Probation Services comments about her lack of cooperation are regrettable. Ms Sagati is a nurse at the hospital and was always busy when attempts were made to contact her. That is entirely understandable, particularly now in the middle of a pandemic. It also has been several years since the offence and her husband died earlier this year. It is also understandable that it may be too painful to revisit that day, particularly in those circumstances. I have no doubt, however, that the offence would have had an impact on the victim and his wife, as well as all those who worked at the hospital. I also have no doubt that the robbery, in broad daylight at a hospital in the middle of the country’s capital city, only contributed further to the community’s fear of these offences.
    
31. As above, the offence is prevalent and calls for strong personal and general deterrence.
    
32. I make it clear that the offender is not to be punished for pleading not guilty, and insisting on a trial. That is his right. It means, however, that he is not entitled to any discount for pleading guilty.
    
33. Whilst not factors in mitigation as such, I have taken into account the fact that no one was physically harmed when considering comparative authorities.
    
34. The role of “look out” or “watchman” played by the offender is an important role but I accept that the offender himself was not armed and that whilst it is clear that he went there with the intention of committing the robbery, his role appears to have been more limited than that of the other men, and the offender’s personal benefit was limited to K2500.
    
35. There are no extenuating circumstances in this case, that is no “particular circumstances in which the offence was committed that has the effect of reducing or diminishing the gravity of” it: Steven Loke Ume & Ors v The State (2006) SC836.
    
36. In mitigation this is the offender’s first offence. He expressed remorse on allocutus which I accept as genuine.
    
37. It is the State’s responsibility to identify clearly the period during which an offender has been held in pre-trial custody. The records are unclear and contradictory. I have given the offender the benefit of any doubt in calculating the term in custody in those circumstances.
    
38. It appears that the offender was first taken into custody on 6 May 2015 (date of arrest). He escaped on or about 11 June 2016. He was apprehended on 17 February 2017 and remained in custody until 15 September 2017 when he escaped again. He was re-apprehended on or about 22 October 2018. In total he has been in custody for 4 years, 4 months and 1 day.
    
39. The State submitted that his escapes should be taken into account in aggravation. A Court may not, however, take into account on sentencing, as aggravating factors, facts which themselves constitute separate offences with which an offender has not been convicted, or facts which do not form part of the offence with which he has been convicted: Ben Wafia and Others v The State (2006) SC851; John Baipu v The State (2005) SC796.
    
40. As such I will not take his escapes into account as an aggravating factor against him. Nevertheless, it remains relevant to the issue of delay, and the extent, if any, he should benefit from the effect of it.
    
41. Delay may be a relevant consideration on sentence, but it will depend on the circumstances. Where there has been a failure on the part of authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation or when considering suspension. See s. 37(3) of the Constitution. That is particularly so where an offender has cooperated with authorities from an early stage: see the discussion in State v Simanjon (2020) N8637. It may also be relevant where the offender has made progress towards his or her own rehabilitation during the period of delay.
    
42. It has been more than six years since the offences were conducted. To a very large extent that delay is of the offender’s own making. He escaped not once but twice from custody. There has been a delay of almost three years since his apprehension in October 2018 but a person who absconds cannot upon apprehension expect to automatically jump back into the queue ahead of others on remand or appearing on bail. Nevertheless, I will take into account that the offender has taken the opportunity to rehabilitate himself during the period of his detention. That is significant and I will return to that below when dealing with suspension.
    
43. I have also taken into account the offender’s background. He is now 36 years of age and cannot be regarded as falling in the category of a youthful offender at the time of the offending, being about 30. He is from Morobe and Central. He left school in 1992 after finishing Grade 2. He is married with a young child. Both his parents are deceased, his mother dying whilst he was in custody last year. His uncle is concerned for his health in prison. His detention has had and will continue to have a significant impact on him and his young family. I accept that he has made great progress towards his rehabilitation and will deal with this below.
    

Sentence

44. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating and mitigating factors, the submissions of counsel, the Supreme Court guidelines, and comparative cases, I sentence the offender to 12 years of imprisonment.
    
45. I do not regard the sentences as a quantum leap from those imposed in the past having regard to the location of the robbery, the comparative sentences set out above, and the increase in the maximum penalty. This case is a serious one and such offences remain prevalent. There are increasing calls by the Courts and the community for these offences to stop. These crimes cannot be tolerated and the Court has a duty to ensure that sentences imposed in such cases contain a strong element of both personal and general deterrence.
    
46. I exercise my discretion to deduct time spent in custody to date.
    
47. The question remains whether to suspend any of the sentence. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
48. Probations Services is of the view that the offender is suitable for probation.
    
49. I intend to take into account the fact that according to the medical evidence he suffers from ligament damage to his right knee. It is clear having observed him at trial and here during sentence proceedings that he has a permanent disability which severely affects his mobility and requires him to use crutches. Whilst he did not depose to it in an affidavit, it is apparent to me from the material from Correctional Services and in the presentence report that he suffered this injury at the hands of police upon his apprehension in 2017. Whilst not directly related to this offence, like any health issue, it is relevant when determining an appropriate effective sentence and I am satisfied that it is appropriate to partially suspend his sentence on the basis that the disability would cause excessive suffering in prison over time. In my view it also appropriate to reflect the Court’s condemnation of such a brutal abuse of power by law enforcement officers.
    
50. Furthermore, there is evidence that in the last three years since his apprehension the offender has made substantial progress towards his rehabilitation. An officer from the Chaplin’s Office at the prison confirms that he is now a church leader at the prison and leads the congregation in activities and gatherings. Having come to know him over the years, he considers that he has completely resiled from his old ways of life.
    
51. Having regard to his disability, condemnation of police brutality, and his progress towards rehabilitation I intend to suspend 4 years. The offender will serve the balance in custody.
    

Orders

(1) The offender is sentenced to 12 years of imprisonment in hard labour.

(2) 4 years, 4 months, 1 day spent in pre-trial custody is deducted, leaving a balance of 7 years, 7 months, 29 days to serve.

(3) Of which 4 years is suspended on the condition that he enter into his own recognisance to keep the peace and be of good behaviour for the balance of his sentence.

(4) Leaving a balance of 3 years, 7 months, 29 days to be served.

Sentence accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender